Late Wednesday, as most Americans cut short their work day to prepare for the Thanksgiving holiday, federal district court Judge Lee Yeakel quietly issued a permanent injunction barring Texas from enforcing its dismemberment abortion ban.
Originally scheduled to take effect on Sept. 1, Senate Bill 8 banned abortions in which doctors use surgical equipment to rip the fetus apart limb from limb, causing the unborn baby to bleed to death. Judge Yeakel previously issued a preliminary injunction, keeping the law from going into effect, and then following expedited pre-trial discovery, the parties squared off in court for a five-day bench trial that concluded on Nov. 8.
Two weeks later, the Austin-based federal judge issued a 27-page opinion holding the dismemberment abortion ban is unconstitutional under Roe v. Wade and its progeny because the act “has the effect of placing a substantial obstacle in the path of a woman’s choice, [and therefore] cannot be considered a permissible means of serving its legitimate ends.”
Texas Attorney General Ken Paxton immediately released a statement condemning the decision and promising an appeal. Within hours, Paxton announced in a second statement that his office had filed with the Fifth Circuit Court of Appeals.
With Texas’ appeal, there are now three challenges to state dismemberment abortion bans pending in the appellate courts. Following a lower court’s decision striking Arkansas’ similar ban, the state went to the Eighth Circuit Court of Appeals; the appellate court has yet to hear arguments in that case. And in Kansas, a state law challenge to the Show Me State’s ban awaits a decision by the Kansas Supreme Court — a decision could come as early as Friday.
Lower courts in Alabama and Oklahoma have likewise struck dismemberment abortion bans, but the states have yet to appeal those decisions, while a court challenge to a Louisiana law is still underway. Mississippi and West Virginia also have dismemberment abortion bans, but those statutes have not been challenged.
Texas’ appeal presents the best chance for the pro-life community to establish the constitutionality of the dismemberment abortion ban because, as Attorney General Paxton stressed in his press release announcing the state’s appeal, the five-day trial allowed the government “to build a record like no other in exposing the truth about the barbaric practice of dismemberment abortions.” Paxton added: “We are eager to present that extensive record before the 5th Circuit. No just society should tolerate the tearing of living human beings to pieces.”
The question on appeal before the federal appellate court will be whether the district court committed any factual or legal errors. The district court’s analysis creates several openings for attack on appeal—the most obvious being Judge Yeakel’s judicial gloss of controlling Supreme Court precedent.
In Planned Parenthood v. Casey, the Supreme Court held that pre-viability, courts must ask whether a statute “has the effect of placing a substantial obstacle in the path of a woman’s choice” to abort her unborn baby. Yet in his opinion striking Texas’ dismemberment abortion ban, Judge Yeakel, as he put it, “construe[d] ‘substantial’ to mean no more and no less than ‘of substance.’” He then rewrote the Supreme Court’s test, writing: “Said another way, the court must answer the question, ‘does the benefit bring with it an obstacle of substance?'”
This misstatement of the law alone could justify reversal, but the state will likely present several other arguments on appeal. However, it will be months before the Fifth Circuit sets a briefing schedule and oral argument. And it could be a year or more before we know the outcome of that appeal.
In the meantime, the pro-life community will continue to wait for the Kansas Supreme Court’s ruling—not just on the dismemberment ban, but on the broader question of whether there is a state constitutional right to abortion.
Margot Cleveland (@ProfMJCleveland) is a contributor to the Washington Examiner’s Beltway Confidential blog. She served nearly 25 years as a permanent law clerk to a federal appellate judge, and is a former full-time faculty member and current adjunct professor for the college of business at the University of Notre Dame.
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